Decision

 

                                              Filed: September 5, 2012

 

State of Louisiana

Civil Service Commission

 

Docket No. 17390

 

Kerbert Newton

 

Versus

 

Department of Health and Hospitals, Eastern Louisiana Mental Health System

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Rule(s):        12.2; 13.19(e)

 

Topic(s):       Reduction in pay of ten percent for three pay periods, possession of a cellular telephone while on duty

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Appearances:          Kerbert Newton, self-represented

                              Jenna Young, representing DHH, ELMHS

 

Statement of the Appeal

 

Kerbert Newton is employed by the Department of Health and Hospitals (DHH), Eastern Louisiana Mental Health System (ELMHS) as a Corrections Guard-Therapeutic, with permanent status. 

 

By letter dated April 9, 2012, DHH notified Mr. Newton that he was receiving a reduction in pay of ten percent for three pay periods beginning April 16, 2012, for possessing a cellular telephone while on duty.  In support of the severity of the penalty imposed, DHH refers to a one-day reduction in pay it previously imposed upon Mr. Newton for possession of a cellular telephone while on duty.

 

On April 10, 2012, Mr. Newton filed an appeal in which he denies the allegations of the disciplinary letter.  As relief, he requests rescission of the disciplinary action, back wages, and expungement of his personnel record.

 

I held a public hearing on July 9, 2012, in Jackson, Louisiana.  Based upon the evidence presented and pursuant to the provisions of Article X, § 12(A) of the Louisiana Constitution of 1974, as amended, I make the following findings and reach the following conclusions.

 

Findings of Fact

 

1.               Kerbert Newton is employed by DHH, ELMHS as a Corrections Guard-Therapeutic, with permanent status.  His work hours are from 5:45 a.m. to 5:45 p.m.

 

2.               On March 10, 2012, Mr. Newton was assigned to the ITU, Ward 1.  This ward houses medium security mental patients.

 

3.               At approximately 5:43 a.m., Mr. Newton reported for duty.  He entered the ITU foyer and was in line to sign-in and go to his assigned ward when his cellular telephone rang.  The cellular telephone was in his pocket.

 

4.               Major Brian Johnson, Corrections Major-Therapeutic, was in the foyer and instructed Mr. Newton to take his cellular telephone to his car, which he did.  Mr. Newton then reentered the ITU, signed-in and went to his duty station.

 

5.               ELMHS’s “Dress and Appearance Code,” Section 20(d)11, states that, “Cell phones – Security staff working the wards are not allowed to have personal cell phones…”

 

6.               ELMHS Policy 2005-EOC #, entitled, “Cell Phone Usage,” states in pertinent part as follows:

 

A.    The use of cellular telephone in direct patient care areas by …Correctional Guards, Therapeutic, … is strictly prohibited.  The patient care area is defined as any place that patients are supervised or attended to by direct care staff, including but not limited to:  units, buildings, park settings, and/or escort activities

 

B.     Cellular telephones are not to be brought to any direct patient care area nor carried or worn by staff while on duty

 

7.               By letter dated June 11, 2010, Mr. Newton received a reduction in pay for one (1) pay period for having his cellular telephone in his shirt pocket while on duty on May 10, 2010.

 

Discussion and Conclusions of Law

 

At the conclusion of Mr. Newton’s testimony, DHH moved to dismiss this appeal under the provisions of Civil Service Rule 13.19(e).  I granted DHH’s motion, and now confirm that ruling.

 

 

 

 

Civil Service Rule 13.19(e) states:

 

(e) The Commission or the referee may require the appellant to give his sworn testimony before hearing any other witness on his behalf, and if the Commission or the referee finds from such testimony that he has no just or legal ground to support his appeal, it or he may decline to hear or consider any other evidence and thereupon dismiss the appeal.

 

In his testimony, Mr. Newton admitted that he had his cellular telephone in his pocket on March 10, 2012, and that it rang while he was signing-in in the ITU foyer.  Mr. Newton testified that he was rushing to get to work on time, his wife had placed his cellular telephone in his pocket, and that he did not realize it was there.  

 

Mr. Newton contends he was not in violation of the agency policies, as he was only in the foyer of ITU, not on the unit, and there were no patients around.  He also contends he was not aware that his cellular telephone was on his person.  However, I find these contentions without merit.  Based on Mr. Newton’s testimony, I conclude that when his cellular telephone rang, he was on duty in a patient care area, i.e. the ITU unit, and thus his conduct was in violation of the agency policies, regardless of whether he knew the telephone was in his pocket or not.

 

As to the penalty, the Civil Service Commission and its Referees have a duty to decide “whether the punishment imposed is commensurate with the dereliction.”  Guillory v. Department of Transp. & Development, 475 So.2d 368, 370-371 (La. App. 1st Cir. 1985).  Mr. Newton possessed a cellular telephone in a patient area while on duty in violation of agency policy.  Possession of a cellular telephone in a secure area of a mental hospital is an obvious security risk, and thus detrimental to the state service.  Prior to the incident at issue in this appeal, DHH had imposed disciplinary action upon Mr. Newton for having his cellular telephone in his shirt pocket while on duty.  Based upon the forgoing reasons, I conclude that DHH proved legal cause for discipline and that the penalty imposed, a reduction in pay of ten percent for three pay periods, is commensurate with the offense.

 

Accordingly, I hereby deny this appeal.

 

 

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Roxie F. Goynes

Civil Service Commission Referee